Advisory Opinion No. 2008-18 Rhode Island Ethics Commission Advisory Opinion No. 2008-18 QUESTION PRESENTED The petitioner, Chief Financial Officer (“CFO”) for the Cranston School District (“School District”), a municipal employee position, requests an advisory opinion as to whether he is prohibited by the Code of Ethics from providing tax preparation services for members of Local 1322 of the Laborers International Union of North America (“LIU”), given that the LIU and the School District are partners in a construction charter school, for which the petitioner as CFO prepares an annual budget. RESPONSE It is the opinion of the Rhode Island Ethics Commission that the petitioner, Chief Financial Officer (“CFO”) for the Cranston School District (“School District”), a municipal employee position, may continue providing tax preparation services for members of Local 1322 of the Laborers International Union of North America (“LIU”), notwithstanding the fact that the LIU and the School District are partners in a construction charter school, for which the petitioner as CFO prepares an annual budget. The petitioner is the Chief Financial Officer for the Cranston School District. He states that the Cranston School District and the Laborers International Union of North America are partners in a construction charter school within the district called the Construction Career Academy (“the Academy”). He states that several representatives from the LIU sit on the Board of Directors of the Academy and that the LIU provides a small number of instructors and the funds to pay for them, as well as funding for some specialized activities, summer programs, and on-site training for students. The petitioner states that the funding provided by the LIU is totally separate from the funding allocated to the Academy by the School District and is not included as a part of the School District’s budget. The petitioner represents that as CFO for the School District, he prepares an annual budget for the Academy for approval by its Board of Directors, which is reviewed by outside auditors. He also reviews the budget on a monthly basis, processes approved bills, and attends monthly meetings of the Board of Directors to provide status updates on the budget. The petitioner states that, separate and apart from his municipal employment as the CFO of the Cranston School District, he works as an independent contractor for the law firm of Coia and Lepore, Ltd. (“Coia and Lepore”), providing tax preparation services for members of various local bargaining units within the Laborers’ International Union. He states that eligible union members receive these tax services as a benefit provided by the LIU as part of their membership. He represents that the LIU contracts with Coia and Lepore to provide these tax preparation services and that Coia and Lepore contracts with him to do the actual tax preparation. He states that one of the bargaining units that provides these services to its members is Local 1322, which includes bus drivers employed within the Cranston School District. However, out of an abundance of caution, the petitioner states that he does not provide services to bus drivers who are members of Local 1322 employed by the Cranston School District, or any other Cranston School District employees. Given the above stated set of facts, the petitioner requests an advisory opinion as to whether he may continue to provide tax preparation services to LIU local members, who are not Cranston School District employees. The Code of Ethics provides that a public employee should not have any interest or engage in any business, employment, or transaction, which is in substantial conflict with the proper discharge of his employment in the public interest (R.I. Gen. Laws § 36-14-5(a)), nor enter into any employment which will impair his independence of judgment as to his official duties (R.I. Gen. Laws § 36-14-5(b)), nor obtain financial gain for himself, a business associate, or employer, other than that provided by law. R.I. Gen. Laws § 36-14-5(d). "Business associate" is defined as “a person joined together with another person to achieve a common financial objective.” R.I. Gen. Laws § 36-14-2(3). In the facts as presented by this petitioner, it is the law firm of Coia and Lepore, Ltd., not the LIU, which has contracted with him for him to provide tax preparation services to individual union members. Thus, while this transaction does create a business association as defined in § 36-14-2(3) between the petitioner and Coia and Lepore, it does not create a business association between the petitioner and the LIU. Furthermore, it is the petitioner’s affirmative representation, that out of an abundance of caution, he will not provide these tax preparation services for any union member whatsoever who is a Cranston School District Employee. Additionally, the petitioner represents that in his role as CFO, while he does prepare the budget for the Academy, this does not include any review or authority over funding provided to the school by the LIU, which is entirely separate from the School District’s funding. Accordingly, there is no indication that the petitioner’s public duties will have a financial impact on the LIU. In previous advisory opinions, the Commission has given its approval to public employees to accept outside employment provided that: (1) the public employee’s official duties did not directly relate to his private employment, (2) the public employee completed such work outside of his normal working hours, and (3) the public employee did not appear before his own agency. See A.O. 2007-38 (opining that the Senior Appraiser for the State of Rhode Island Department of Administration, Office of Municipal Affairs, may accept private employment in the form of a part-time job as a data collector for Clipboard, Inc., a property reevaluation company, provided that she do the work on her own time, without the use of public resources and that she not appear before her own agency); A.O. 2005-52 (opining that a part-time Town Planner for the Town of Exeter was not prohibited by the Code of Ethics from accepting part-time work as a consultant on two projects for the Exeter Town Council and Planning Board); A.O. 2004-24 (opining that a member of the City of Cranston Fire Department and Assistant Deputy State Fire Marshal was not prohibited by the Code of Ethics from providing consulting services relating to fire safety and code compliance outside of Cranston). Under the set of circumstances as represented by the petitioner, provided that the petitioner adheres to the aforementioned requirements, there is nothing in the Code of Ethics that prohibits him from providing tax preparation services as an independent contractor with Coia and Lepore to LIU union members who are non-Cranston School District employees. Code Citations : § 36-14-2 (3) § 36-14-5(a) § 36-14-5(b) § 36-14-5(d) Related Advisory Opinions : 2007-38 2005-52 2004-24 Keywords : Business Associate Private Employment